Gordon Hull First Applicant And: Juanita Hull Second Applicant And: Her Majesty the Queen in Right of Newfoundland v. Labrador, as Represented by the Minister of Municipal Affairs and, 2022 NLSC 132

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Hull v. Newfoundland and Labrador (Municipal Affairs and Environment) , 2022 NLSC 132 Date : August 30, 2022 Docket : 202104G0077 Between: Gordon Hull First Applicant And: Juanita Hull Second Applicant And: Her Majesty the Queen in Right of Newfoundland and Labrador, as Represented by the Minister of Municipal Affairs and Environment First Respondent And: Newfoundland and Labrador (Attorney General) Second Respondent Before: Justice Laura A. Mennie Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: May 27, 2022

Summary:

The Applicants sought judicial review of a decision of the Minister of Municipal Affairs and Environment that they were not permanent residents of Little Bay Islands for the purposes of the Government’s Relocation Policy. The Court determined that the Minister’s decision was unreasonable and remitted the matter back to the Minister for reconsideration. Appearances: Dean A. Porter Appearing on behalf of the Applicants David L. Hearn Appearing on behalf of the Respondents Authorities Cited: CASES CONSIDERED: Tucker v.

Newfoundland and Labrador (Municipal Affairs) 2019 NLSC 182 ; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Newfoundland and Labrador Teachers’ Association v. Newfoundland and Labrador English School District , 2022 NLSC 119 ; Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 ; Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Russell v. Newfoundland and Labrador (Municipal and Intergovernmental Affairs) (4 November 2019), Corner Brook 2017 04G 0268 (NLSC); Fudge v. Newfoundland and Labrador (Minister of Municipal Affairs) , 2013 NLTD(G) 14; Tucker v.

Newfoundland and Labrador (Municipal Affairs) , 2019 NLSC 182; Oxford v. Newfoundland and Labrador (Municipal Affairs and Environment), 2020 NLSC 102 ; and Levor v. Newfoundland and Labrador (Municipal and Provincial Affairs) , 2021 NLSC 121 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42 , Sch. D REASONS FOR JUDGMENT Mennie, J. : INTRODUCTION [ 1 ] In 2016, the Provincial Government of Newfoundland and Labrador agreed to provide financial assistance to permanent residents of the community of Little Bay Islands, NL if the requisite percentage voted in favour of relocation. In a letter dated October 11, 2018 (the “Minister’s Decision”), the Minister of Municipal Affairs and Environment, Mr.

Andrew Parsons, QC (the “Minister”), advised the Applicants that they were not entitled to receive relocation monies because they did not meet the definition of “permanent resident” as set out in the Government’s Community Relocation Policy (the “Policy”). The Applicants seek judicial review of the Minister’s Decision. BACKGROUND The Policy [ 2 ] In Tucker v.

Newfoundland and Labrador (Municipal Affairs) 2019 NLSC 182 , a case involving the same Policy as before me, Boone, J (as he then was) provided the following background information at paragraphs 2 to 4: 2 Resettlement is a policy of the provincial government intended to facilitate the aggregation of the population into larger communities and rationalize the delivery of public services. Current resettlement process is community-initiated. It is based in Government policy and not the subject of statute or regulation.

The only treatment of the topic in either statute or regulation is in the Evacuated Communities Act, 2016 , R.S.N.L. 2016, c. E-15.1 , which deals only with questions arising after a community has been vacated by voluntary relocation with the assistance of Government. 3 The Government has adopted a Community Relocation Policy (the " Policy "). The current statement of that policy was promulgated in November 2016. The Policy allows the Minister of Municipal Affairs to consider and approve a request from a community to hold a vote on relocation.

If 90% of the permanent residents of a community vote in favour of relocation, then the Minister may approve financial assistance for relocation, so long as the cost of such assistance does not exceed the projected cost of delivering services to that

community over a defined period. 4 Two community initiatives asked the Minister to consider relocation of the Town of Little Bay Islands, a community spread over four small adjacent islands in Notre Dame Bay. The first request in 2013 resulted in a plebiscite in which slightly fewer than 90% of permanent residents voted in favour of relocation. The request for assistance was therefore rejected. However, in 2016, another plebiscite returned a vote of greater than 90%, and the Minister approved the relocation request and ancillary financial assistance.

Pursuant to the Policy , the assistance available was set at $260,000 for a household of two persons determined to be permanent residents. [ 3 ] In its Policy, Government defined a “permanent resident” as follows: D. Permanent Resident: The following rules shall determine residency of a person for the purpose of the Community Relocation Policy: (

i) A person shall be a resident of the place where he or she lives and sleeps year-round, 365 days per year; (ii) Residency is not lost by a person who leaves that residence for temporary purposes only, such as: 1. The individual was temporarily absent for a vacation or holiday; 2. The individual was temporarily absent for medical reasons substantiated by a doctor's note satisfactory to the Minister; 3. The individual was temporarily absent to care for a close relative outside the relocating community; 4.

The individual or his/her spouse worked outside the Community and regularly returned to the Community between periods of outside employment; or 5. The individual was temporarily incarcerated. (iii) Notwithstanding the above, a person who goes to a place outside the Community for a period of more than six months, in the one- year period preceding the relocation request date, ceases to be a permanent resident in the community, although he or she may intend to return at some future time, with the exception of those accessing ongoing health care treatment substantiated by a doctor's note or temporarily incarcerated.

A person residing in a Long-Term Care Home does not qualify as a permanent resident. (iv) A person who has left his or her place of residence in the Community to pursue a course of study is considered to be a permanent resident in the place where he or she was residing immediately before leaving to pursue the course of study, and he or she is considered to continue to have that permanent residence until he or she completes or abandons the course of study. (

v) a person shall, for the purpose of the Community Relocation Policy, have only one place of residency. (vi) Proof of residency must be satisfactory to the Department. [ 4 ] To be eligible for relocation funding, an individual had to satisfy the Government that they met the definition of permanent resident for the time period from February 2016 to June 2017 (the “Qualification Period”) The Applicants [ 5 ] The Applicants are a married couple. Both individuals were born in Little Bay Islands in 1948.

The Applicants’ background and the circumstances under which they considered leaving Little Bay Islands is set out in paragraphs 3 and 4 of their memorandum of fact and law and accepted by counsel for the First and Second Respondents (hereinafter the “Respondents”): 3. The Applicants, Mr. and Mrs. Hull, lived permanently in Little Bay Islands since 1948. They have owned residential property located at 104 Main Street in Little Bay Islands and raised three children in the Community. Their residence on Little Bay Islands is the only residence they had known. 4. In 2003, Mr.

Hull was forced to stop working as a welder after he suffered a severe stroke which caused visual, speech and mobility impairments. Mrs. Hull then retired from her job at the crab plant to assist with her husband’s medical condition. Along with the help from family and friends, Mr. and Mrs. Hull remained in their home until it was advised that they should consider moving closer to

medical facilities due to Mr. Hull’s deteriorating health. [ 6 ] In the summer of 2016, Mr. Hull’s health was progressively failing. Mr. and Mrs. Hull decided they would leave Little Bay Islands and relocate to Springdale in order to be closer to medical services. In October 2016, the Hulls left Little Bay Islands. They did not return to the community at any time prior to the expiration of the Qualification Period in June 2017.

The Hulls did, however, continue to insure their home and pay the property taxes, electricity and cable. [ 7 ] In a letter dated June 28, 2017, the Department of Municipal Affairs and Environment (the “Department”) invited any individual who wished to be considered for the purpose of the Policy as a permanent resident of Little Bay Islands or, alternatively, a permanent residential property owner in the community, to complete a standard form affidavit. Mr. and Mrs. Hull completed and signed their affidavits on July 25, 2017, in which they provided the following information: a.

They had lived in Little Bay Islands since 1948. b. They have one place of residence which is located at 104 Main Street, Little Bay Islands. c. They live in Little Bay Islands year round but were absent from the community from November 2016 to June 2017, being the last eight months of the Qualification Period. Their absence was for reasons permissible under the Policy. d. Their income tax returns for 2015 and 2016 and their utility bills were mailed to 104 Main Street, Little Bay Islands. e. Mrs. Hull’s current driver’s licence stated her address as P.O.

Box 246, 1D Winsor Road, Springdale. [ 8 ] When asked to provide some general comments to support their claims of being permanent residents of Little Bay Islands, they both stated that they had lived at Little Bay Islands from September 1948 until October 2016. In his affidavit Mr. Hull also indicated as follows: “. . . Due to my medical condition we moved to Springdale to be closer to medical services. . . .” [ 9 ] In her affidavit, Mrs. Hull stated: “. . . Due to my spouse’s medical condition, we moved to Springdale to be closer to medical services.” [ 10 ] Both parties included a letter from Dr.

Frank Hicks, Mr. Hull’s family doctor. The letter, dated July 25, 2017, read as follows: Re: Gordon Hull . . . To whom it may concern, This is to confirm that the above named patient suffer a severe stroke in 2003. He was left with left hemmphosis and aphasia. Because of his medical condition he did move off Little Bay Islands into Springdale to be closer to medical services in 2016. He continues to have the same medical problems and needs to be close to medical facilities. I trust this information to be helpful to you. For any questions or concerns please feel free to contact my office at the number below.

Thank you. Dr. Frank Hicks [ 11 ] The parties also signed consent forms to allow the Department to contact the following departments, agencies and people to validate the information they had provided: the Canada Revenue Agency, the Department of Finance, Government of Newfoundland and Labrador, Newfoundland and Labrador Hydro, Newfoundland Power, Service NL, Motor Vehicle Division, the Town of Little Bay Islands and Dr. Hicks.

The initial decision [ 12 ] In a letter dated April 2, 2018, the Department advised the Applicants that they did not meet the definition of permanent resident as stated in the Policy (the “Department’s Decision”). As a result, they were not entitled to vote as to whether the community of Little Bay Islands should be relocated and, assuming that relocation occurred, they were not entitled to any relocation assistance. The letter also indicated that the Applicants had 30 days to appeal the Department’s Decision regarding their residency status.

If they wished to do so they were to notify the Minister in writing outlining their arguments in support of the appeal and including all documentation upon which they intended to rely. In an undated letter, Mrs. Hull advised the Department that she and her husband wished to exercise their right to an appeal. She argued that their absence from Little Bay Islands during the period from February 2016 to June 2017 was a temporary absence due to medical reasons. Her letter of appeal reads in its entirety as follows: To whom it may concern

Dear Sir/Madam Recently the Government of Newfoundland and Labrador sent me notification stating that my husband and I am not eligible to vote on the potential relocation of the community of Little Bay Islands, because we do not fulfill the residency requirement, 1.D (

i) which states that a person shall be a resident of the place where he or she lives and sleeps year round, 365 days per year. Residency is not lost however if the individual was temporarily absent for medical reasons substantiated by a doctor’s note satisfactory to the Minister. My husband, Gordon and I resided on Little Bay Islands all of our lives and raised our family there as well. Our lives changed forever in 2003 when Gordon suffered a severe stroke which left him with both vision and speech impairment and well as mobility issues.

We continued to live in our community and in our home and I was quite satisfied being my husband’s only caregiver, along with the help of my family and close friends who were always there to lend a helping hand. We participated in the 2013 community relocation program as we were deemed to be full time residents, which resulted in a 89.47% outcome. In the summer of 2016, it was suggested that due to Gordon’s deteriorating health issues, we consider relocating closer to medical facilities, and with the support of our family, we made the decision to relocate to Springdale in October of that same year.

We were both very upset that we had to move from our home and from our community but felt comfortable that the right decision was made. Unsure of what the future held, I made the decision to keep our home on Little Bay Islands, and I continue to pay both the yearly insurance and property tax, even though it’s been a tough road financially. We owned our home there, and while it was the right decision to move, I was concerned about the financial impact of it.

I have briefly outlined our circumstances as it pertains to the resettlement policy and respectfully submit that if it were not for the concerns for my husband’s failing health, we would be still living in our own home on Little Bay Islands. I have enclosed a supporting letter from our family doctor, Dr. Frank Hicks. I ask that you give full consideration to our request for appeal and please don’t hesitate to contact me if I can provide any further information. I can be reached at . . . . Sincerely, Juanita Hull [ 13 ] In support of the Hulls’ appeal, Mrs. Hull enclosed another letter from Dr. Hicks.

The letter, dated April 9, 2018, stated verbatim what he had said in his earlier letter of July 25, 2017. [ 14 ] Mrs. Hull argued that notwithstanding the Hulls absence from Little Bay Islands since October 2016, they remained permanent residents by virtue of the exceptions for temporary absences created in sections 1.D.(ii) or 1.D.(iii) of the Policy. The appeal [ 15 ] Pursuant to the Policy, the Minister appointed John Hogan (the “Reviewer”) as an independent reviewer to consider the Applicants’ appeal and make a recommendation to him.

Although the Policy did not require the Reviewer to contact an individual who had filed an appeal, the Reviewer gave the Hulls the opportunity to meet with him. An in-person meeting did not take place. Instead, on July 27, 2018, the Reviewer spoke to Mrs. Hull by phone (the “Appeal Meeting”). Mr. Hull did not participate in the call due to limitations with his speech. [ 16 ] The Reviewer wrote a report (the “Report”) in which he discussed, among other things, the spirit and intent of the Policy. At paragraph 31 he stated: 31.

I agree with these comments that the spirit and intent of the Policy is, for the most part, to provide assistance for individuals who are going to lose their homes. Once a community is relocated, the value of a home would be minimal and individuals who have spent their lives building equity in these homes are now unable to sell them as a means to fund the purchase of a new home in another community. However, as pointed out by Goodridge, J., individuals must still fit within the conditions of the Policy before compensation is provided.

Property ownership in and of itself is not sufficient. [ 17 ] A portion of the Report focuses on the Reviewer’s

interpretation of the criteria set out in the Policy to determine residency status. He stated at paragraphs 13 - 24:

Interpretation of

Section 1.D of the Policy – Permanent Resident 13. Pursuant to

section 1.D.(i) [of] the Policy , a person is a resident of the place “where he or she lives and sleeps year-round, 365 days a year.” For the within matter, the consideration is whether the individual resides in Little Bay Islands. If they reside in Little Bay Islands 365 day (sic) a year, then they are a Permanent Resident of Little Bay Islands pursuant to the Policy . 14. If a person does not meet the requirement of

section 1.D.(i), they can still be deemed a Permanent Resident if they were absent from Little Bay Islands “for temporary purposes only” for reasons such as vacation or holiday; medical reasons substantiated by a doctor’s note satisfactory to the Minister; to care for a close relative outside Little Bay Islands; they (or their spouse) worked outside

Little Bay Islands and regularly returned to the Community between periods of outside employment; or were temporarily incarcerated.These exceptions are outlined in

section 1.D.(ii) of the Policy and the list is not exhaustive. Should it be determined that an individualwas absent for a permitted exception pursuant to

section 1.D.(ii), that individual shall be deemed to be a Permanent Resident of LittleBay Islands pursuant to the Policy. 15. However, there is a limitation placed on the permissible absences.

Section 1.D.(iii) contains a “notwithstanding clause”. A personceases to be a Permanent Resident if they go to a place outside Little Bay Islands for a period of more than six months in the one-yearperiod preceding the relocation request date. This places an objective limit on the permissible absence from Little Bay Islands. 16. There are two exceptions to the six-month absence rule, being that a person can be absent for more than six months if the absenceis due to “accessing ongoing health care treatment” substantiated by a doctor’s note or the person was temporarily incarcerated. 17.

Another limitation placed on being a Permanent Resident is that an individual residing in a Long-Term Care Home does notqualify to be a permanent resident (section 1.D.(iv)). 18. Finally, a person can only have one place of residency for the purpose of the Policy (section 1.D.(v)). Temporary Absence –

Section 1.D.(ii) 19. While there are permitted exceptions which allow individuals to maintain their residency status despite being absent from LittleBay Islands, these absences must be “temporary”. This is an overarching requirement of

section 1.D.(ii). Therefore, while an individualcan be absent for vacation or holiday; medical reasons; to care for a close relative; work (or their spouse’s work); or incarceration, theabsences must be temporary and not permanent. Once the absence is permanent, the exceptions no longer apply and an individualcannot avail of

section 1.D.(ii). Medical Reasons –

Section 1.D.(ii).2 20. Flynn v. Newfoundland and Labrador, 2018 NLSC [29] (hereinafter referred to as “Flynn”) was a case that was decidedunder the previous version of the Community Relocation Policy, which was adopted in 2013. However, Flynn is still relevant in certainaspects. For example, the phrase “temporarily absent for medical reasons” appears in both the 2013 and 2016 versions of the CommunityRelocation Policy. At paragraph 47 of Flynn, Butler, J. concluded that whether or not someone has a “permanent” medical condition isirrelevant: This conclusion also runs contrary to the wording of the Policy.

Section 1.d.a(ii) gave an exemption to an individual “temporarily absentfor medical reasons” as opposed to somebody who is “temporarily ill”. The conclusion that Laura Flynn’s medical condition waspermanent, was irrelevant and constitutes an error in the application of the Policy [emphasis added in original]. 21. Therefore, what is relevant is whether the person is “temporarily absent” for medical reasons, not whether their medical conditionis permanent or temporary. An individual may be absent from the community for the following reasons: (

i) temporarily absent with a permanent medical condition; (ii) temporarily absent with a temporary medical condition; (iii) permanently absent with a permanent medical condition; or (iv) permanently absent with a temporary medical condition. 22. The Policy permits individuals to be absent for the first two reasons, but not for the second two. The issue to be determined is notthe severity of the medical diagnosis itself, but rather whether the medical diagnosis keeps that person away from the community eitherpermanently or temporarily. As concluded at paragraph 55 of Flynn:

The Policy was clear; any temporary absence for medical reasons supported by a medical note was required to be added to the actual days of residency. 23. Also,

section 1.D.(ii) refers to being absent for “medical reasons” whereas

section 1.D.(iii) (discussed further below) refers to absence due to “ongoing health care treatment”. I interpret “medical reasons” more broadly than “ongoing health care treatment.” There must be evidence of specific, ongoing treatment to avail of the notwithstanding clause of

section 1.D.(iii) of the Policy . Less specificity is required in reference to “medical reasons.” Furthermore, a “medical reason” does not necessarily mean someone is receiving “ongoing health care treatment”, but “ongoing health care treatment” is most certainly a “medical reason,” thus meaning “ongoing health care treatment” is the narrower of the two phrases. Notwithstanding Clause –

Section 1.D.(iii) 24. As noted above, the notwithstanding clause in

section 1.D.(iii) of the Policy places a six-month limit on the permissible absence from Little Bay Islands. I interpret

section 1.D.(iii) to mean that notwithstanding that a person can be temporarily absent from a community, the temporary absence is limited to a period of six months. This means that the first step is to do an analysis under

section 1.D.(ii). If the absence is permanent, then the analysis does not proceed to

section 1.D(iii). If it is determined that the absence is temporary, an individual can only be absent for a period of more than six months if the conditions of

section 1.D(iii) are satisfied, otherwise they have ceased to be a Permanent Resident. If the absence is permanent, then the length of time of the absence is irrelevant and the individual cannot avail of

section 1.D.(iii). [ 18 ] The Reviewer also discussed how the Qualification Period was determined and its relevance in his review. At paragraphs 27 and 28 he stated: Timeline 27. The Policy does not specifically refer to a timeline during which the 365 days year-round must be satisfied. However, there is a limit placed on the six-month period prior to the date deemed to be the relocation request date (section 1.D.(iii)). The dates provided for in the Affidavit are from February 2016 to June 2017 so these are the dates on which I will base my decision.

This is different from the previous Community Relocation Policy which provided for an analysis of specific dates in the two-years prior to the effective date. However, Butler, J. made a conclusion in Flynn that is relevant to the current Policy . At paragraph 45 of Flynn , Butler, J. stated that the circumstances of the individual at the time of the decision (i.e. the decision of the independent reviewer) are not relevant: I find this conclusion to be contrary to the intent and meaning of the Policy.

Section 1.d.(

a) required proof of residency in the community for at least 183 days in the two, twelve-month periods prior to the effective date. These periods would have been 2011-2012 and 2012- 2013 fiscal years and not Laura Flynn’s status as at the date of the Decision which was on September 29, 2014. However, the Reviewer’s reference that Ms. Flynn’s circumstances “have resulted in her now only being a seasonal resident of William’s Harbour” (italics in original) confirm that his focus was on her circumstances as of the date of his meeting with her.

This was an error. 28 Similarly, I will base my decision for the within appeal on the facts provided and outlined in the Affidavit, and not on any facts which have arisen after the date of the Department’s Decision. [ 19 ] After canvassing the contents of the Hulls’ affidavits, the Reviewer referenced the discussion at the Appeal Meeting. He stated at paragraph 38: 38. At the Appeal Meeting, I spoke only with Mrs. Hull. She advised that Mr. Hull is medically unable to speak. Mrs. Hull stated that both of the Hulls were born and raised on Little Bay Islands.

They have been married for almost 50 years and raised three children in Little Bay Islands. Mr. Hull stopped working as a welder in 2003 when he suffered a stroke. Mrs. Hull retired from working at the crab plant when she was 65 years old. Following his stroke, Mr. Hull progressively got worse leading to their decision in 2016 to move to Springdale; they would still be in Little Bay Islands if he was healthy. They rent a residence at Morgan’s Manor in Springdale for $650 per month. [ 20 ] The Reviewer’s analysis and conclusion was found at paragraphs 42 - 45 of the Report: Analysis 42.

Based on the Affidavits and as confirmed in the Appeal Meeting, the Hulls did not spend 365 days a year in Little Bay Islands for the time period February 2016 – June 2017. Therefore, they fail

section 1.D.(

i) of the Policy .

43. Based on the Affidavits, the days when the Hulls were away from Little Bay Islands for the time period February 2016 – June 2017 was for Mr. Hull’s “medical” issues and therefore Mr. Hull could fall within the exception in

section 1.D.(ii).3 of the Policy . This is confirmed by Dr. Hicks’ note. My

interpretation of

section 1.d.(ii).2 of the Policy , explained in paragraph 23 herein, is that a broad

interpretation should be applied to the phrase “medical reasons.” Therefore, the reason Mr. Hull was not in in (sic) Little Bay Island (sic) was for the exception outlined in

section 1.D.(ii).2 of the Policy . 44. However, as noted in paragraph 19 herein, while there are permitted exceptions which allow individuals to maintain their residency status despite being absent from Little Bay Islands, these absences must be “temporary.” This is an overarching requirement of

section 1.D.(ii). I note that the Hulls submitted in their Affidavits that they now reside in Springdale and as discussed at the Appeal Meeting, the move to Springdale is a permanent one. The Hulls stayed on Little Bay Islands for as long as they could but eventually Mr. Hull’s medical condition deteriorated to a point where they could no longer stay, they made the decision to move. His condition will not improve and therefore the Hulls absence from Little Bay Islands is not temporary. Similarly, Mrs. Hull cannot avail of the

section 1.D. (ii) exception because her absence is also permanent. Conclusion 45. I conclude that the Hulls do not fall within the exceptions outlined in

section 1.D.(ii) of the Policy and therefore they did lose their residency of Little Bay Islands. [ 21 ] The Reviewer submitted his Report to the Department. In October 2018, an internal Decision note was prepared for the Minister recommending that he accept the Reviewer’s conclusion with respect to the Hulls’ residency status. As already mentioned, the Minister advised the Hulls that their appeal had not been successful. The relevant portions of the Minister’s Decision read: OCT 11 2018 Mr. Gordon Hull and Mrs. Juanita Hull . . . Dear Mr. and Mrs.

Hull: Re: Potential Relocation of Little Bay Islands I am writing to you regarding the potential relocation of Little Bay Islands and your recent residency status appeal. Based on Mr. John Hogan’s independent review, I have accepted his recommendation that you do not meet the criteria of Permanent Residents of Little Bay Islands. Mr. Hogan concluded that you do not fall within the exceptions outlined in

section 1.D.(ii) of the Community Relocation Policy ( temporarily absent ). You stated in your affidavit that you reside in Springdale. Furthermore, during your appeal meeting, you talked about how your move to Springdale is permanent. This means you are ineligible to vote on the potential relocation and you are ineligible for relocation financial assistance. I have enclosed Mr. Hogan’s report for your information. There is no further appeal process available under the Community Relocation Policy, however, if you remain dissatisfied with your residency determination, you have the option of pursing a judicial review of the matter. . . . Sincerely, Andrew Parsons, QC

Minister of Municipal Affairs and Environment Enclosure [ 22 ] The Minister’s letter did not set out the rationale underlying his Decision other than he accepted the recommendations of the Reviewer as set out in his Report. POSITION OF THE PARTIES [ 23 ] The Hulls seek judicial review of the Minister’s Decision on the basis that it is unreasonable. They argue in the alternative that if the Court finds that the Minister’s Decision was reasonable, it should be set aside because the residency requirements in the Policy violate s. 15(1) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 by discriminating against Mr. and Mrs. Hull on the basis of his physical disability and her family/marital status. [ 24 ] The Respondents submitted that based upon a review of the Record they filed pursuant to Rule 54.07 of the Rules of the Supreme Court, 1986 (the “ Record ”) the Reviewer’s conclusion was justified, intelligible, and transparent and did not reveal a fundamental gap in reasoning or an unjustified chain of analysis.

They argued that the Reviewer’s conclusions, and ultimately the Minister’s Decision, falls within a range of possible, acceptable outcomes that are defensible in light of the facts of this case and prevailing state of the law. As a result, the Minister’s Decision should be upheld. [ 25 ] With respect to the Applicant’s claim under s. 15 of the Charter , the Respondents disagreed that the criteria for establishing permanent residency as set out in the Policy is discriminatory.

They agreed, nevertheless, that if the Court found that there had been a Charter breach, the breach could not be saved by s. 1 of the Charter . ISSUES [ 26 ] The issues I must decide are as follows: a. What is the appropriate standard of review? b. How should the Court apply the reasonableness standard? c. Does the Minister’s Decision meet the reasonableness standard? d. Does the Policy’s criteria for establishing residency violate s. 15 of the Charter ? e. If the Minister’s Decision is quashed, what is the appropriate remedy? a.

What is the appropriate standard of review? [ 27 ] In Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , the Supreme Court of Canada stated that reasonableness is now the presumptive standard of review. The presumption can be rebutted where the legislature intended a different standard to apply or where the rule of law requires it. Both parties agree that as neither of those exceptions apply in this case, reasonableness is the appropriate standard of review. I agree. b. How should the Court apply the reasonableness standard? [ 28 ] In Newfoundland and Labrador Teachers’ Association v.

Newfoundland and Labrador English School District , 2022 NLSC 119 , O’Brien, J., relying on the decisions in Vavilov and Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 , succinctly set out the principles which apply to judicial review on the standard of reasonableness. She stated at paragraph 12: [12] The following principles apply to judicial review on the standard of reasonableness: a. The starting point for any judicial review is the decision maker’s reasons for decision. b. The burden is on the party challenging the decision to show that it is unreasonable. c.

To be reasonable a decision must be acceptable and defensible on the facts and the law in terms of the outcome and the justification or rationale given. d. A reasonableness review is not a line-by-line treasure hunt for error. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic.

e. Reasonable decisions are logically coherent with a rational chain of analysis. They bear the hallmarks of justification, intelligibility, and transparency. They are made within the legal and factual constraints relevant to the decision. f. Reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given. The reviewing court should consider contextual factors such as the governing statutory scheme, the evidence, the submissions of the parties and past practices and decisions. g.

While reviewing courts should ensure the decision under review is justified in relation to the relevant facts, deference to decision makers includes deferring to their findings and assessment of the evidence. Reviewing courts must pay respectful attention to decision makers’ demonstrated expertise when considering whether an outcome reflects a reasonable approach given the consequences and the operational impact of a decision. h.

Before a decision can be set aside for being unreasonable, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. i. If a decision is reviewed on a standard of reasonableness, and it meets this standard, then the court will not interfere and the decision will be upheld. j.

If, having conducted a review based on these principles, the court decides that the administrative decision maker’s decision should not be upheld, then usually the court will remit the matter back to the administrative decision maker for reconsideration. In some limited cases, the court may simply make the decision it determines should have been made. [ 29 ] The principle stated in paragraph (

g) requires some further comment. While the Court is expected to pay a level of deference to the Reviewer’s findings, it is certainly not to be viewed as a “rubber stamp”. In Vavilov , the Court stated at paragraph 13: 13 Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.

However, it is not a "rubber-stamping" process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. [ 30 ] It also stated at paragraph 96: 96 Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines , at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion… c.

Does the Minister’s Decision meet the reasonableness standard? [ 31 ] The Applicants bear the onus of proving that the Minister’s Decision was unreasonable. [ 32 ] The Applicants submitted that the Minister’s Decision was unreasonable as it was based upon the erroneous belief that if an applicant could not meet the permanent residency requirements in

section 1.D.(

i) or 1.D.(ii), he or she was barred from voting and receiving relocation assistance. The Applicants claimed that based on this

interpretation of the Policy, the Minister did not find it necessary to consider

section 1.D.(iii) which applies notwithstanding

section 1.D.(ii). The Applicants submitted that had the Minister properly applied the saving effect of

section 1.D.(iii) he would have ultimately determined, based upon the medical evidence provided in Dr. Hicks’ letter, that the Applicants were permanent residents of Little Bay Islands. [ 33 ] I disagree. It is clear from the Reviewer’s Report that he, and subsequently the Minister, was aware of the requirements an individual must meet in order to fall within the definition of permanent resident as set out in the Policy. The Reviewer undertook, in paragraphs 13 - 24 of the Report, a thorough analysis of the wording of sections 1.D.(ii) and (iii).

Informing his analysis was reference to case law from this Court in relation to similar Government policies concerning relocation. (See Flynn v. Newfoundland and Labrador , 2018 NLSC 29 ; Russell v. Newfoundland and Labrador (Municipal and Intergovernmental Affairs) (4 November 2019), Corner Brook 2017 04G 0268 (NLSC); Fudge v. Newfoundland and Labrador (Minister of Municipal Affairs) , 2013 NLTD(G) 14; Tucker v. Newfoundland and Labrador (Municipal Affairs) , 2019 NLSC 182 ; Oxford v. Newfoundland and Labrador (Municipal Affairs and Environment) , 2020 NLSC 102 ; and Levor v.

Newfoundland and Labrador (Municipal and Provincial Affairs) , 2021 NLSC 121 ). Based upon his review, he concluded that to avail of the exceptions found in 1.D.(ii) and (iii), an applicant’s absence from the community could not be permanent. For ease of reference, I will repeat the Reviewer’s comments and his suggested analysis as stated in

paragraph 24 of the Report: 24. As noted above, the notwithstanding clause in

section 1.D.(iii) of the Policy places a six-month limit on the permissible absence from Little Bay Islands. I interpret

section 1.D.(iii) to mean that notwithstanding that a person can be temporarily absent from a community, the temporary absence is limited to a period of six months. This means that the first step is to do an analysis under

section 1.D.(ii). If the absence is permanent, then the analysis does not proceed to

section 1.D(iii). If it is determined that the absence is temporary, an individual can only be absent for a period of more than six months if the conditions of

section 1.D(iii) are satisfied, otherwise they have ceased to be a Permanent Resident. If the absence is permanent, then the length of time of the absence is irrelevant and the individual cannot avail of

section 1.D.(iii). [ 34 ] In accordance with the steps he outlined, the Reviewer started his assessment as to whether the Applicants fell within the definition of permanent resident as set out in the Policy with reference to

section 1.D.(ii). Once he decided that their move to Springdale was permanent, he concluded that

section 1.D.(iii) need not be considered. Upon my review of the Policy and the Report, I am of the view that the Reviewer’s reasoning process in this regard, and thus that of the Minister, is justifiable and reflective of the spirit and intent of the Policy. As stated by Goodridge, J. (as he then was) in Fudge , a case involving a similar relocation policy for the community of Round Harbour, at paragraph 26: 26 The Relocation Policy provides financial assistance to those who qualify. It is not a program designed to reimburse all persons for all costs associated with relocation.

Individuals who have to established permanent residency in another community…do not benefit from the Relocation Policy . [ 35 ] This does not, however, end the inquiry as to whether the Minister’s Decision, considered in its totality, met the reasonableness standard. My conclusion that the Reviewer’s

interpretation of

section 1.D.(ii) and (iii) of the Policy was justifiable does not automatically mean that the manner in which the Minister applied his

interpretation was reasonable. The Court must determine whether the Minister’s finding that

section 1.D.(ii) or (iii) did not apply to the Applicants was reasonable. As noted in Vavilov , a reasonable decision must be acceptable and defensible on the facts and bear the hallmarks of intelligibility, justification and transparency. [ 36 ] The Reviewer’s conclusion that the Applicants were not permanent residents of Little Bay Islands as defined in the Policy is set out at paragraph 45 of his Report. He stated he reached his conclusion based on the Applicants’ affidavits, the letter from Mr. Hull’s doctor and the discussion he had with Mrs. Hull during the Appeal Meeting.

The Reviewer made the following finding of fact in paragraphs 42 - 44: a. The Hulls submitted in their affidavits that they now reside in Springdale; b. At the Appeal Meeting Mrs. Hull discussed the move to Springdale as a permanent move; and c. As Mr. Hull’s medical condition will not improve, the Hulls’ absence from Little Bay Islands could not be temporary. [ 37 ] The Reviewer relied on these facts in reaching his conclusion that the Applicants were not permanent residents. I have determined that in doing so the Reviewer made four errors.

First, the Reviewer’s statement at paragraph 44 of the Report that “I note that the Hulls submitted in their Affidavits that they now reside in Springdale” was not supported by the facts. I referenced what the Applicants stated in their affidavits at paragraph 7 herein. They did not state that they resided in Springdale. All that can be gleaned from their comments is that they moved to Springdale to be closer to medical services. A move can be permanent or temporary. The Applicants’ intention either way could not be ascertained from their affidavits.

Nevertheless, the Reviewer proceeded on the basis that the Applicants’ move was permanent without considering any other possible

interpretations. [ 38 ] A second error occurred when the Reviewer concluded at paragraph 44 of the Report that the Applicants now reside in Springdale. The Policy required the Applicants to prove their residency status during the Qualification Period. The Reviewer was clearly aware of this given that at paragraph 27 he stated that in determining residency status, “. . . the circumstances of the individual at the time of the decision (i.e. the decision of the independent reviewer) are not relevant . . .”.

Nevertheless the Reviewer’s comment in his Report that the Applicants “now reside in Springdale” indicates that in reaching his conclusion about the Applicants’ residency status, he focused on their circumstances as of a date outside of the Qualification Period. As stated by Butler, J. (as she then was) in Flynn at paragraphs 44 – 45 : [44] I turn now to the specific conclusions that were made by the Reviewer in his recommendation to the Minister.

At page 7, following reference to the relevant portions of the Policy, the Reviewer concluded: While the Appellant would have at some time in the past clearly satisfied the status of permanent resident of William’s Harbour, the passage of time and her declining health have resulted in her now only being a seasonal resident of William’s Harbour. … [45] I find this conclusion to be contrary to the intent and meaning of the Policy.

Section 1.d.(

a) required proof of residency in the community for at least 183 days in the two, twelve-month periods prior to the effective date. These periods would have been 2011-2012 and 2012-2013 fiscal years and not Laura Flynn’s status as at the date of the Decision which was on September 29, 2014. However, the Reviewer’s reference that Ms. Flynn’s circumstances “have resulted in her now only being a seasonal resident of William’s Harbour” (italics added) confirm that his focus was on her circumstances as of the date of his meeting with her.

This was an error. [ 39 ] A third error arose when the Reviewer considered the nature of Mr. Hull’s medical condition. Whether Mr. Hull’s medical condition was temporary or permanent was not relevant to the issue of his residency status during the Qualification Period. It is clear from paragraphs 20 - 21 of the Report that the Reviewer was aware of the prevailing law in this regard as he referenced the decision in Flynn wherein the Court stated at paragraphs 46 - 47:

[46] The second error I find in the

interpretation and implementation of the Policy is referenced at page 8 of the Decision. The Reviewer concluded “The Appellant is also not ‘temporarily’ absent for medical reasons. Her inability to live for long periods of time in William’s Harbour is not just a temporary feature of her life. This is not the circumstance anticipated by the medical exception in the Policy .” [47] This conclusion also runs contrary to the wording of the Policy.

Section 1.d.a(ii) gave an exemption to an individual “temporarily absent for medical reasons” as opposed to somebody who is “temporarily ill”. The conclusion that Laura Flynn’s medical condition was permanent, was irrelevant and constitutes an error in the application of the Policy. [ 40 ] Despite properly instructing himself on this issue, the Reviewer proceeded to place great weight on his finding that Mr. Hull’s condition was permanent in reaching his ultimate conclusion [ 41 ] The fourth and final error was in relation to the Reviewer’s use of information he obtained at the Appeal Meeting.

As previously noted, the decision of an independent reviewer to contact a person who has filed an appeal is discretionary. Paragraph 3 of the Policy states: “. . . The reviewer may contact the person(

s) who filed the appeal to request additional information but is not required to do so. . . .” As we have seen, the Reviewer in this case did decide to contact the Applicants and an Appeal Meeting took place with Mrs. Hull by phone on July 27, 2018. It is clear from paragraph 44 of the Report that the Reviewer, in reaching his ultimate conclusion about the Applicants’ residency status, considered information he received during the Appeal Meeting when he stated, “. . .

I note that the Hulls submitted in their Affidavits that they now reside in Springdale and as discussed at the Appeal Meeting, the move to Springdale is a permanent one. . . .” [ 42 ] The Reviewer’s reliance on information he received at the Appeal Meeting raises two concerns. First, in paragraph 28 of the Report, the Reviewer set out the evidentiary parameters of the review he would be undertaking.

He stated, “Similarly, I will base my decision for the within appeal on the facts provided and outlined in the Affidavit and not on any facts which have arisen after the date of the Department’s Decision.” The Department’s Decision was made on April 2, 2018, more than three months before the Appeal Meeting. Given the evidentiary restrictions as indicated by the Reviewer, his consideration of anything that was said during the Appeal Meeting constituted an error. [ 43 ] The second concern related to the Reviewer’s use of information he received at the Appeal Meeting is that there is no record of what transpired.

The Record produced by the Department contained no reference to any recording of the Appeal Meeting or to any notes made by the Reviewer during the Appeal Meeting or after. The Court is concerned about the Reviewer taking into account information that is not recorded in any fashion or information that is not disclosed to the Applicants. Given that the Reviewer either did not make any notes or, if he did, failed to disclose them, Mrs. Hull is unable to satisfy herself that he interpreted the comments she made during the Appeal Meeting in the spirit in which she had intended them.

Similarly, the Court cannot assess the context in which the information was received, the Reviewer’s ability to accurately recall what Mrs. Hull said and whether Mrs. Hull gave the Reviewer other relevant information that he chose not to reference in his Report. While I acknowledge the direction given in Vavilov that the reviewing court should not interfere with the Reviewer’s factual findings, a reasonable decision is one that is justifiable on its facts. In this case, because there is no record as to what was discussed at the Appeal Meeting, the Reviewer’s conclusion lacks transparency.

This lack of transparency frustrates the Court’s ability to properly assess whether the decision was justified, reasonable and made within the factual constraints [ 44 ] The aforementioned errors, when considered in their totality, cannot be characterized as minor in nature. They all relate to the Reviewer’s finding that the Applicants were not permanent residents of Little Bay Islands as defined by the Policy.

Determining the Applicants’ residency status in a reasonable manner was crucial to the proper application of the Policy. [ 45 ] For all of the reasons I have set out above, I have concluded that the Reviewer’s conclusion, which was accepted and subsequently became the Minister’s Decision, did not meet the standard of reasonableness and must be quashed. d. Does the Policy’s criteria for establishing residency violate s. 15 of the Charter ? [ 46 ] Given my conclusion that the Minister’s Decision was unreasonable, I will not consider the Charter issue. e.

If the Minister’s Decision is quashed, what is the appropriate remedy? [ 47 ] Counsel for the parties submitted that if I quashed the Minister’s Decision, the matter ought to be remitted back to him for reconsideration. [ 48 ] In Vavilov the Court stated that while it will most often be appropriate to remit the matter back to the decision maker, there are exceptions.

The Court stated at paragraphs 140 - 142: [140] Where the reasonableness standard is applied in conducting a judicial review, the choice of remedy must be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide: see Delta Air Lines , at para. 31.

However, the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and “the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”: Alberta Teachers , at para. 55. [141] Giving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons.

In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome: see Delta Air Lines , at paras. 30-31.

[142] However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrativedecision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in amanner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19.An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round ofjudicial reviews and subsequent reconsiderations.

Declining to remit a matter to the decision maker may be appropriate where it becomesevident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serveno useful purpose: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), (SCC), [1999] 3 S.C.R. 855; Groia v.Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v.

Canada (Attorney General), 2018 FCA 205, 50C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, atparas. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 54 and 88.

Elements like concernfor delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whetherthe administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficientuse of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise ofits discretion to quash a decision that is flawed: see MiningWatch Canada v.

Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. [49] In this case, given the nature of my concerns and, in particular, the omissions in the Record concerning the Appeal Meeting, Ihave concluded that it would be more appropriate in these circumstances to remit the matter to the Minister for reconsideration with thebenefit of my comments. CONCLUSION [50] The decision that the Applicants are not permanent residents of Little Bay Islands as defined in the Policy is unreasonable.

Thematter shall be remitted to the Minister for further consideration. _____________________________ Laura A. Mennie Justice